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October 01, 2002

From the Chair

by Mark Agrast

This special issue of Human Rights examines a matter of major importance for the protection of individual rights: the reemergence of a "federalist" jurisprudence that challenges the authority of Congress to enact remedial legislation.

These essays consider the effects of a series of 5-4 decisions in which the Supreme Court expanded the doctrine of state sovereign immunity and narrowed the scope of congressional power under the Commerce Clause and section 5 of the Fourteenth Amendment.

In his recent book Narrowing the Nation’s Power, the conservative jurist John T. Noonan, Jr., questioned whether this realignment can be squared with the goals of our Constitution:

Do decisions that return the country to a pre-Civil War understanding of the nation establish a more perfect union? Are decisions just that shield not only the states but lesser appendages of the states from paying for the wrongs they commit? Do decisions that leave the elderly and the disabled with inadequate remedies for unequal treatment establish justice? Do decisions that dislodge patents, copyrights, and trademarks from assured protection insure domestic tranquility? Do decisions that leave women less protected by the law than men achieve any of the constitution’s [ sic] ends?

Noonan at 12.

Judge Noonan compares the recent federalism cases to Dred Scott, Lochner v. New York, and other infamous rights-restricting precedents that have long since been repudiated. In fact, he need only have looked back to 1976, when the Court embarked on its last excursion into what Professor Tribe dubbed "the errant trajectory of state sovereignty." In National League of Cities v. Usury, 426 U.S. 833 (1976), a divided court struck down amendments to the Fair Labor Standards Act that extended federal minimum wage and maximum hour provisions to state and municipal employees. The decision was overruled seven years later in another split judgment, but, as Tribe has warned (and recent events have shown), "it would be unwise to bury National League of Cities just yet." Laurence H. Tribe, Constitutional Choices 137 (1985).

On Capitol Hill, where I have earned my living for the last decade, invocations of federalism are routine but largely empty of normative content. Politicians who stoutly defend state prerogatives in one area are quick to impose federal solutions in another—opposing federal handgun checks, for example, while supporting federal damage caps in state malpractice suits. Federalism functions chiefly as an argument of convenience, a rhetorical weapon to be used in opposing particular applications of federal power. Few indeed are the politicians who pursue a consistent and principled view as to the proper sphere of congressional authority. And fewer still are those who have attempted to articulate a coherent philosophy as to where the line should be drawn.

The American Bar Association has sought to draw a line against the increasing federalization of crime—a subject traditionally regulated by the states. Yet may one conscientiously oppose new federal death penalty offenses while urging a greater federal role in the prosecution of hate crimes? For that matter, on what basis does one legitimately resist preemption of state product liability laws while favoring federal product safety standards?

For those not beholden to doctrinal orthodoxies, such dilemmas are best resolved not by reference to abstract notions of sovereignty but as a question of their practical effects: which apportionment of authority will best restrain government from infringing essential rights and liberties? When should we seek uniform national solutions, and when is it better to allow the states to develop their own answers—to function, in effect, as the laboratories envisioned by Justice Brandeis? It is this pragmatic calculus that seems to capture the spirit of the Framers’ own struggles with the dual nature of the federal scheme:

Whether the politics of the American republic would prove more "federal" or "national"—more oriented toward the statehouses of an expanding society or toward the drafty Capitol soon to be built in the federal district—was a function neither of the language of the Constitution nor of any grand principles that the framers implanted in their regime but of the various ways in which Americans weighed the advantages and disadvantages of pursuing their interests within the compound federal structure the Constitution both created and acknowledged.

Jack N. Rakove, Original Meanings 202 (1996).

To this day, many legislative struggles that are couched in terms of federalism are really questions about which level of government will be most responsive to particular interests and policy choices. And as such, they are questions best addressed by the political branches, not the courts.

In a larger sense, the debate over federalism is an argument about competing visions of the state. Each of us is pulled between an American faith in the possibilities of government and an equally American reluctance to surrender local prerogatives to a distant power. This tension is encoded in the Constitution itself and presents a perennial challenge for every American who cares about individual rights and responsibilities—a challenge we must not only accept but also embrace.

Mark Agrast

Mark Agrast is chair of the Section from 2002-2003.